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Mirtle: NHLPA’s hard-liners hint at decertification after latest offer rejected

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Old
11-22-2012, 09:16 PM
  #201
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Originally Posted by NJDevs26 View Post
I think the last thing in the world the owners would do is acquiese to the 'wild west' of decertification. They're going tooth and nail now just to keep the cap/linkage, you think they want no cap, no linkage and a NHL which will look more like the EPL (i.e. five teams in the league having a chance to win anything, the rest existing as mere fodder for the big markets)? When it's the misers like Jacobs and Leipold that are driving this lockout? I wonder if Leipold would pay more for Parise and Suter this time or pass

This is a last resort for players imo because any potential decertification doesn't really benefit the rank-and-file, but if they're so convinced the league isn't going to negotiate then there's nothing to lose really, since they're not getting any paychecks now. That's why the owners dismissing the players' offer dismissively yesterday was a huge blunder, it galvanized the PA leadership.
who comprises the PA leadership? If it's the Fehrs, this has all probably been going according to plan so far. Let the league negotiate against themselves for a couple months then propose something you know they won't sign off on. It's just an extension of the 20 minutes to get up and grab a glass of water from the table over there stunt. Galvanized? This is where they wanted this mess aimed.

Also...Leipold is a miser in what way? Leave your bitterness out of it. He just gave two players guaranteed $20m not contingent on them playing at all. they already got the checks. He isn't negotiating his way out of that.

Now, he may no longer want to do business in a de-certified environment, but that doesn't really make him a miser. It just means he's smart enough to know he won't be the guy with the biggest bankroll and competitive enough to make it not worth his while to exist to be fodder. He's willing to spend to the cap under the current system and take a couple seasons of guaranteed unprofitability by handing out no-strings-attached money just to get the team competitive. Not really miserly. How many owners are going to be looking (i'm guessing pretty unsuccessfully) to sell their franchises if de-certification goes through. If you're looking to sell, you typically make the payroll as cheap as possible, so this could hasten the skill-disparity a lot of people are worried about. So we could have the all-stars west or Team Canada playing the friggin Ice Hogs 5 out of every 7 games. how much fun is that?

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11-22-2012, 09:17 PM
  #202
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Originally Posted by Fugu View Post
There are at least a couple of lawyers that have commented, but it's not up to me to disclose. Just look for the posts where people speak with a certain degree of 'certainty'...
I don't know if that's helpful. I've read posts where there was full certainty that Bozak, Kulemin and Macarthur will get you a young franchise defenseman

But I will take your word for it.

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11-22-2012, 09:21 PM
  #203
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Originally Posted by sawchuk1971 View Post
ryan miller advocating decertification...

http://www.theglobeandmail.com/sport...article5578329

From this article, there's mention of a paper, which can be downloaded (I've added the link below), but the same theme comes up again:
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Outside observers of the lockout are surprised the players didn’t contemplate decertification earlier than this week. Nathaniel Grow, a sports labour law expert from the University of Georgia, has written extensively on the process, including an article this year titled Decertifying Players’ Unions: Lessons from the NFL and NBA Lockouts. He explained that NHL players would gain multiple options after decertifying, whether short term (an injunction to end the lockout or even just better their negotiating position) or long term (financial damages as the result of an antitrust suit).

“Unless the NHLPA really think they’re going to get a deal here in the next two weeks, the downside to dissolving the union isn’t that great,” Grow said. “It seems like they’re at the point where they’re about to exhaust the benefits of unionism. You have to start more seriously questioning if you need a game changer here to reshape the balance of power in negotiations.

The case law resulting from professional athletes pushing for injunctions or antitrust claims remains up for debate, Grow added, and the uncharted areas could be where NHL players – who would then be led by legal counsel instead of a union – find leverage.
Whether it makes sense for professional athletes to have a union at all is also now a point for debate after the mess negotiations have become in the NFL, NBA and NHL in the past 18 months.
A lot of academic commentators would tell you it’s the leagues that really want the unions,” Grow said. “Because under U.S. law … they can violate federal antitrust laws in ways that they couldn’t if the players weren’t unionized. Normally, under antitrust laws principles, a salary cap would be illegal.”

It's an interesting debate-- who needs unions more in today's legal environment?

Link to the abstract. Click on the Download button to get a PDF copy:
http://papers.ssrn.com/sol3/papers.c...act_id=1978517

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Old
11-22-2012, 09:27 PM
  #204
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Quote:
Originally Posted by Fugu View Post
From this article, there's mention of a paper, which can be downloaded (I've added the link below), but the same theme comes up again:



It's an interesting debate-- who needs unions more in today's legal environment?

Link to the abstract. Click on the Download button to get a PDF copy:
http://papers.ssrn.com/sol3/papers.c...act_id=1978517
In the major league pro sports world?
Good question.

What happens to existing pensions for old timers?

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11-22-2012, 09:30 PM
  #205
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I have no law background so maybe someone here that does can chime in, is there a distinction to be made between negotiating in bad and refusing to negotiate?

My two cents. It would seem to me that it would be difficult to make a case during an active CBA that there's a refusal to negotiate a new CBA. The law allows the expired CBA to continue beyond expiry if neither party has moved to terminate the agreement. In fact, this was actually spelled out in the last CBA-- either party can move to terminate, otherwise they continue to operate under that CBA.

The NHL issued its notice in June (perhaps May?) of intent to terminate once the last CBA expired.

Don Fehr, on behalf of the PA, repeatedly said the PA was willing to continue working under the expired CBA, as the law allows, while negotiating a new agreement.

Thus it really may come back to which side can demonstrate that the other was unwilling to negotiate in good faith, which 'may' legally mean showing a willingness to compromise on the contentious issues. I personally have only seen one party making demands on a whole slew of issues, with the PA asking "what do we get in return."

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11-22-2012, 09:35 PM
  #206
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If decertification is the way to do that, then so be it.

“I am tired of the disregard and the ego,” Miller said. “Our fans and sponsors are alienated, and this is hurting the game. This process has more of the appearance of brand suicide than a negotiation.”

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11-22-2012, 09:38 PM
  #207
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Ha ha. I felt I needed the biohazard warning for the war in here.






Thanks, F1. @ottawah. At least from my perspective, the owners have only suggested ways of taking back on every front. From F1's post, that would suggest that asking for concessions alone and only budging on how much or how severe those concessions should be wouldn't meet the requirement of "clean hands" or willingness to compromise.
That alone does not make it negotiating in bad faith.

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11-22-2012, 09:40 PM
  #208
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Originally Posted by PensFanSince1989 View Post
That alone does not make it negotiating in bad faith.

Intent seems to be the key word.

What else do you think is needed to demonstrate bad faith negotiation?

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11-22-2012, 09:44 PM
  #209
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Intent seems to be the key word.

What else do you think is needed to demonstrate bad faith negotiation?
Basically that they were never trying to get an actual deal done. NHL was working toward a deal. Simply because it's not a deal the NHLPA currently likes, doesn't make it in bad faith. It would be hard for either side to be proven at this point to be negotiating in bad faith.

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11-22-2012, 09:44 PM
  #210
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Originally Posted by Captain Bob View Post
If decertification is the way to do that, then so be it.

“I am tired of the disregard and the ego,” Miller said. “Our fans and sponsors are alienated, and this is hurting the game. This process has more of the appearance of brand suicide than a negotiation.”
I see his point. Miller has impressed when he has spoken up. He's fairly articulate.

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11-22-2012, 09:45 PM
  #211
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Originally Posted by Captain Bob View Post
If decertification is the way to do that, then so be it.

“I am tired of the disregard and the ego,” Miller said. “Our fans and sponsors are alienated, and this is hurting the game. This process has more of the appearance of brand suicide than a negotiation.”
Miller and other players might want to look up the tale of King Pyrrhus.

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11-22-2012, 09:46 PM
  #212
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Originally Posted by PensFanSince1989 View Post
Basically that they were never trying to get an actual deal done. NHL was working toward a deal. Simply because it's not a deal the NHLPA currently likes, doesn't make it in bad faith. It would be hard for either side to be proven at this point to be negotiating in bad faith.

I see it completely opposite in that only the PA has asked to give up something IF you use the old CBA as your starting point. It seems to be a natural starting point since it was the last legal agreement between the two parties.

However, I'm not a lawyer, so I don't know what the litmus test is legally.

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11-22-2012, 09:48 PM
  #213
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Then there's the matter that this is a legitimate multinational league that has home offices in both, and that it would have to be filed in both countries and get favorable rulings from both, and the appeals, and what not.... and I would guess unanimous favorable rulings.

Would take a long time. Really I think this is another case where the players aren't being told how these things work.

Only if it was used as a scare tactic would it have any effectiveness. Although I would laugh if they somehow won the cases all the way through the process, and then had to pay for things like their tickets on flights to games.

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11-22-2012, 09:49 PM
  #214
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If they decertify, could the owners impose their CBA and invite players to form a new union with an understood 50-50 relationship? Is that on the up and up?

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11-22-2012, 09:52 PM
  #215
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I see it completely opposite in that only the PA has asked to give up something IF you use the old CBA as your starting point. It seems to be a natural starting point since it was the last legal agreement between the two parties.

However, I'm not a lawyer, so I don't know what the litmus test is legally.
That wouldn't be how it works. There's nothing that says you have to give and take from the last CBA. The league can easily argue that it strongly feels that the last CBA put the league at financial peril, and that it thought it required these concessions in order to make the league more viable.

To say you are negotiating in bad faith means you are negotiating just for appearance, not actually trying to get a deal done. And that I think would be an extremely hard thing for someone to prove of the NHL. I actually think it'd be easier to show of the NHLPA than of the NHL right now. Basically, you'd have to show that there's some ulterior motive to the NHL's actions here, opposed to just trying to get the deal that they want done.

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11-22-2012, 09:54 PM
  #216
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Then there's the matter that this is a legitimate multinational league that has home offices in both, and that it would have to be filed in both countries and get favorable rulings from both, and the appeals, and what not.... and I would guess unanimous favorable rulings.

Would take a long time. Really I think this is another case where the players aren't being told how these things work.

Only if it was used as a scare tactic would it have any effectiveness. Although I would laugh if they somehow won the cases all the way through the process, and then had to pay for things like their tickets on flights to games.
That's either passed on in the 'contract' as a reimbursable expense; or is deducted from your taxes.

The issue is more problematic for teams. They couldn't schedule games back-to-back in different cities and expect that everyone could get there in time if they're at the mercy of commercial airlines. I know this is supposed to scare players (and their supporters here), but realistically, it would be more of logistical concern for the teams.

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11-22-2012, 09:56 PM
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That wouldn't be how it works. There's nothing that says you have to give and take from the last CBA. The league can easily argue that it strongly feels that the last CBA put the league at financial peril, and that it thought it required these concessions in order to make the league more viable.

To say you are negotiating in bad faith means you are negotiating just for appearance, not actually trying to get a deal done. And that I think would be an extremely hard thing for someone to prove of the NHL. I actually think it'd be easier to show of the NHLPA than of the NHL right now. Basically, you'd have to show that there's some ulterior motive to the NHL's actions here, opposed to just trying to get the deal that they want done.

Can I ask you if you're a lawyer who understands the litmus test courts require?

I've thrown this out as my own speculation with the qualifier that I'm not legally trained. I'm at least referring to some legalese another member posted upstream.

Is this your own interpretation of how you think the law works or how you know the law works?

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11-22-2012, 09:57 PM
  #218
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Can I ask you if you're a lawyer who understands the litmus test courts require?

I've thrown this out as my own speculation with the qualifier that I'm not legally trained. I'm at least referring to some legalese another member posted upstream.

Is this your own interpretation of how you think the law works or how you know the law works?
I'm not a practicing lawyer, but am trained as one. I'm not an expert on this field, but it is my understanding of 'negotiating in bad faith'.

Negotiating in bad faith is basically when you are just negotiating for appearances.

I don't see the NHL with an ulterior motive here and I don't see them negotiating for appearances. I think you can make a stronger case for the NHLPA than you can for the NHL. I guess the only thing you could say is if the NHL was actually trying to break the union opposed to actually make a deal, but I don't think that's whats going on.


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11-22-2012, 09:58 PM
  #219
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It is a game of chicken.

IMO the union benefits 80% of the players in the NHL that would all be making less in a free market system. It's the cap floor that made these guys rich, not their skills. Teams only have so much money to spend regardless, so who are they going to give the big bucks to? The stars of course. And if teams pay the stars most of the money available, that leaves less for the remaining 80%.

Just like the teams are split into the haves and the have nots, in a free market system, so will the players.
I disagree.
Middle of the road players were getting paid before the cap floor.

Not having things like arbitration will be the biggest drag on salaries.

Make it a free market and players with marketable skills will get contracts.

The really poor players -- maybe they take less. But the fourth line grinder who excels at faceoffs and kills penalties? He's going to have a market just like he has now.

And he might even benefit, because teams with no artificial cap can afford to offer him more -- if there is competition for his service, he wins

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11-22-2012, 10:01 PM
  #220
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That's either passed on in the 'contract' as a reimbursable expense; or is deducted from your taxes.

The issue is more problematic for teams. They couldn't schedule games back-to-back in different cities and expect that everyone could get there in time if they're at the mercy of commercial airlines. I know this is supposed to scare players (and their supporters here), but realistically, it would be more of logistical concern for the teams.
The teams could just charge a couple hundred bucks for their charters, which are commerical planes most of the times anyway.

It's a cost they get no return on. In a no-rules environment they could try to get a return.

It is what it is. Really, none of this would come into practice anyway because an honest decertification process would take too long to play this season. And you'd have to assume that all of these goofballs could come to an agreement if they had an entire year to do so.

Like I said, as a scare tactic, maybe effective. But as an honest attempt all they're doing is setting $1.8B, or whatever it is, on fire. And setting it on fire for something you may not win, and then you end up back at square one.

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11-22-2012, 10:02 PM
  #221
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Are things like flight and hotel expenses written in players contracts or in the cba?

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11-22-2012, 10:02 PM
  #222
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Originally Posted by PensFanSince1989 View Post
I'm not a practicing lawyer, but am trained as one. I'm not an expert on this field, but it is m understanding of 'negotiating in bad faith'.

Negotiating in bad faith is basically when you are just negotiating for appearances. It's most common when someone has the right of renewal to be negotiated (say for a lease), but the landlord knows he can make more money with someone else. So, they negotiate with no real intent on actually making a deal.

I don't see the NHL with an ulterior motive here.
Fair enough. Regardless of the definition, I think it's a difficult thing to prove. The NHL has some very good legal counsel on their side, so I'd be surprised if they set the league up to easily fall flat on this point.

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11-22-2012, 10:12 PM
  #223
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I'm in
This is exactly what the Habs/Leafs rivalry needs!

Leafs get Phoenix and Tampa while the Habs Get Columbus and Florida. Deal?

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11-22-2012, 10:13 PM
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If the Players decertify they won't be paying for meals and flights unless they had a true cheap skate owner. While those are currently contractually obligated in the CBA, those items are simply part of doing business, and would be covered. Maybe a few really terrible owners would skimp, but almost every team would keep the status quo.

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11-22-2012, 10:14 PM
  #225
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Originally Posted by Disgruntled Observer View Post
Are things like flight and hotel expenses written in players contracts or in the cba?
I would assume it's in the CBA, the players are not independent contractors and would not be negotiating such things in their contacts.

If they decertified? Well then they could negotiate that kind of stuff as independent contractors.

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